05 June 2023

Strasbourg’s Coming Out

Coming out is a deeply personal and sensitive process that can be incredibly challenging. Everyone needs their own time and space to determine when and how they choose to share their journey of acceptance and disclosure. Admittedly, the European Court of Human Rights chose a very apt moment in selecting the first day of Pride Month to make its own.

On June 1st, in Maymulakhin and Markiv v. Ukraine, the Court determined for the first time in clear terms that the general absence of legal recognition for same-sex couples is discriminatory and violates Article 14 of the European Convention of Human Rights. This marks a significant addition to the Court’s case-law concerning the rights of same-sex couples with implications for future litigation on this subject.

Denial and Acceptance: The Stages of Coming Out

Article 14 has been in the closet for quite some time, as the Court has constantly denied and downplayed its significance regarding the rights of same-sex couples. In numerous cases involving gay rights, the Court often chose to omit a distinct examination of potential discrimination under Article 14, instead prioritizing the assessment of the substantive provision violation in isolation.

In the case of Dudgeon v. UK, for instance, the Court restricted its examination to determining whether a national law that criminalized consensual sexual relations between men infringed upon the right to respect for private life, without delving into an analysis of its discriminatory nature (paras. 64-70).

Likewise, when addressing the issue of legal recognition for same-sex couples, the Court held that States had an obligation to provide some form of legal recognition according to Art. 8. This obligation stemmed from the fact that the absence of legal recognition prevented same-sex couples from enjoying various social benefits and civil rights, thereby impacting their right to private and family life. However, the Court declined to examine the applicants’ additional complaints that the absence of such recognition amounted to discrimination (see Oliari v. Italy, 2015; Orlandi v. Italy, 2017; Fedotova v. Russia [GC], 2023, see here and here for some comments; Buhuceanu v. Romania, 2023).

This practice stems from the Court’s tendency to consider a separate violation of Article 14 only when it is firmly convinced that discrimination is a “fundamental aspect of the case” under consideration (Airey v. Ireland, 1979, para. 30).

The Court remained steadfast in this approach, even when it was evident that the respondent State possessed clear discriminatory intent in denying same-sex couples any form of legal recognition. As noted by partly dissenting judges Pavli and Motoc in the case of Fedotova v. Russia [GC], sexual orientation “was the sole basis for denying [same-sex couples] any form of legal recognition or protection of their bond as couples in committed relationships” (para. 4 of the partly dissenting opinion). Indeed, it was clear that that the Russian State exhibited bias against same-sex couples, as it relied on the prevailing negative perception among the majority of the Russian population towards same-sex unions to justify the complete absence of recognition (Fedotova v. Russia, para. 118). This was even more clear in the case of Buhuceanu v. Romania, where the respondent State deemed it appropriate to emphasize that the majority of Romanians disagreed with the idea that “gay, lesbian, and bisexual people should have the same rights as heterosexual people” (para. 50). They asserted that this disagreement constituted a “pressing social need” that could outweigh the need of recognition of same-sex couples (ibid.).

In Maymulakhin and Markiv v. Ukraine, the Court reconsidered its position and finally accepted (as scholars long suggested) that Art. 14 speaks to the denial of legal recognition to same-sex relationships. The Court emphasized that while unmarried different-sex couples had the option to choose between marriage or maintaining a de facto family union, same-sex couples were “denied any such choice” (para. 68). Consequently, the Court maintained, similarly to its approach in Taddeucci and McCall v. Italy (2016, see para. 83), that it would be artificial to solely compare the situation of same-sex couples with unmarried different-sex couples. Unlike different-sex couples who opt not to marry for personal reasons but can still receive some legal recognition and protection in Ukraine due to their de facto family status, the applicants in this case had no access to marriage nor any alternative form of legal recognition. As a result, same-sex couples were subject to differential treatment due to the absence of legal recognition and protection. Given that the Ukrainian State failed to provide sufficient justification for this disparity, the Court concluded that Article 14 had been violated.

The Insecurities of Coming Out: A Schizophrenic Court?

As is often the case with coming out, the European Court experienced some personal confusion and uncertainty during the process. Notably, just one week prior to the Maymulakhin and Markiv case, the Court had dealt with a similar issue in Buhuceanu v. Romania (May 23rd), where several same-sex couples lodged complaints regarding their inability to marry or form legally recognized partnerships. Confusingly, the Court approached these two cases in entirely different ways. In Buhuceanu, the Court focused solely on the practical dimension of legal recognition, namely the rights and benefits associated with it. It approached the complaint under the perspective of Article 8, rejecting a separate examination of Article 14. As I argue elsewhere, arguments grounded on equality considerations seemed to disappear entirely from the decision.

In Maymulakhin and Markiv, however, the Court adopted a completely different approach. It emphasized the “intrinsic value” of recognition as a symbol of inclusion and equality of same-sex couples, affirming in para. 64 that “allowing same-sex couples to be granted legal recognition and protection undeniably serves [the Convention’s] ideals and values in that recognition and protection of that kind confers legitimacy on [same-sex] couples and promotes their inclusion in society, regardless of sexual orientation. A democratic society within the meaning of the Convention rejects any stigmatisation based on sexual orientation, being built on the equal dignity of individuals and sustained by diversity”. Furthermore, the Court noted that the core of the applicants’ grievance was “to be treated with equal dignity” and that “the State would confer a sense of legitimacy on their relationship by legally recognising its existence and by ensuring its adequate protection” (para. 77).

Both judgments evince different underlying logics, with one emphasizing the practical dimension of legal recognition in terms of rights and benefits (Article 8 analysis), and the other highlighting its symbolic value in terms of equality (Article 14 and Article 8 analysis). It might also be that the different outcomes hinged on the formulation of the complaint. Thus, the applicants in Maymulakhin and Markiv chose to directly invoke Article 14 in conjunction with Art. 8, rather than Article 8 alone, which was the case in Buhuceanu.

Adding further nuance, the composition of the Court differed between Maymulakhin (Fifth Section) and Buhuceanu (Fourth Section), with no overlap amongst the judges hearing each case. The apparent implicit inconsistency may eventually find its way to the Grand Chamber, especially considering that the latest GC judgment on same-sex couples and legal recognition, Fedotova v. Russia, employed arguments grounded in equality considerations but ultimately denied a separate examination of Article 14 (on this point see more extensively para. 5 of the partly dissenting opinion of judges Pavli and Motoc).

If the opportunity presents itself, the Grand Chamber should re-evaluate this stance. An equality-based approach to legal recognition is preferable to analysis based on Article 8 because it can address the broader societal implications and consequences of denying legal recognition to certain individuals or groups. For one, it acknowledges the fundamental importance of treating all individuals equally and ensuring that they have access to the same rights and benefits, regardless of their characteristics. At the same time, it recognizes that the impact of legal recognition extends beyond the immediate practical dimension and contributes to the advancement of the values underlying the ECHR, such as democracy, social justice and inclusion. Moreover, an equality approach serves a practical purpose, since Article 14 allows a comparative assessment between different-sex couples and same-sex couples in deciding the exact content of protection that should be granted with legal recognition.

In this regards, Judges Pavli and Motoc aptly noted in Fedotova v. Russia (para. 5 of the partly dissenting opinion) that:

“[…] laws have a moral dimension and they help shape a society’s moral views. They tell their beneficiaries that they are not invisible, that they are seen and valued as equal members of that society, irrespective of their differences. Conversely, national legal regimes that discriminate on impermissible grounds do the contrary: they tend to reinforce prejudice and social segregation, causing harm that goes above and beyond the violation of particular individuals’ Article 8 rights. There is, therefore, great inherent value in a Court judgment that confirms the “equal enjoyment of rights” is imperative.”

The Day After: Where to Next?

Within the LGBT community, there is a light-hearted saying that when somebody comes out, it seems like everyone else follows suit. In Proust’s “À la recherche du temps perdu” the protagonist’s discovery of the first homosexual character occurs in the fourth book, “Sodome et Gomorrhe”. Afterward, it seems that a multitude of characters within the story engage in various homosexual relationships or encounters.

One may wonder if, after this judgment, other Convention rights will eventually “come out”. Specifically, one may consider the implications of this judgment for Article 12, which guarantees the right to marry. Historically, the Court has consistently maintained that restrictions on the right to marry cannot be examined in light of Article 14 (from Schalk and Kopf v. Austria onwards, more explicitly in Oliari v. Italy, para. 193). However, it is plausible that the exclusion of same-sex couples from marriage constitutes an excessive restriction of a Convention right based on sexual orientation.

Some of the arguments presented by the Court in the Maymulakhin and Markiv case may hold relevance for future assessments of complaints under Article 12. This is particularly evident upon examination of the Court’s dismissal of the States’ justification for the protection of the traditional family, which is often invoked as a valid reason to oppose same-sex marriage. The Court affirmed that the recognition of same-sex couples does not impede different-sex couples from marrying or establishing a family based on their own understanding of the term (para. 77). Furthermore, the Court emphasized that securing rights for same-sex couples does not inherently weaken the rights of others or other couples (ibid.). These considerations may have implications for future evaluations of complaints related to Article 12.

SUGGESTED CITATION  Fedele, Giulio: Strasbourg’s Coming Out, VerfBlog, 2023/6/05, https://verfassungsblog.de/strasbourgs-coming-out/, DOI: 10.17176/20230605-111112-0.

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